Cases involving intellectual property disputes are challenging to litigate in any forum. They often turn on complex scientific or technical information. Persuading jurors or a trial judge while also educating them on the underlying science is a daunting task—with the latter objective potentially negating the first. We think it is often easier to provide arbitrators with the grounding needed to adjudicate life sciences cases than it is to educate a judge or a jury.
We will explain the basis for that contention and provide guidance on how best to educate arbitrators. Before doing so, we note by way of example that we recently benefited greatly from a “tutorial” in a trade secret misappropriation case involving the development of competing pharmaceuticals. There, each side designated an expert to give a presentation on certain core matters, such as the etiology of the disease and the mechanism of action for each therapy. This tutorial provided invaluable context throughout the arbitration, including when adjudicating motions and receiving evidence at the merits hearing.
Arbitration Versus Courthouse Litigation
While judges are in a far better position than juries to receive educational materials—jurors receive such materials as the trial starts, leaving little time to process them—not all judges are willing to receive educational aids. Some may be insulted by the suggestion that they need to be educated, and others simply may not have time. Another obstacle is that it is unclear when in the case the judge will be able to receive the tutorial or reference materials. If the judge has referred the case to a magistrate for discovery purposes, the tutorial may be more appropriate prior to summary judgment. If this is delayed until the bench trial, the judge may be in the same position as the jury.
By contrast, arbitration is a party-led process, making it unlikely that a joint request for tutorials will be refused. And arbitrators will almost always be a willing audience. They choose their cases, avoiding those that do not interest them or for which they do not feel qualified. They also control their “dockets” through other means, giving them more time than judges to dive into complex subject matter.
Another advantage of arbitration in technically complex cases is that the parties pick the arbitrators. Parties can, for example, include a provision in their contract requiring that one or more of the arbitrators have specific expertise. While this is often the right choice for the parties, narrowing the pool of potential arbitrators at the outset may make it difficult to find qualified arbitrators who are acceptable to the parties and available. Alternatively, parties can select arbitrators known for their flexibility and acceptance of ways to make proceedings more efficient.
The Benefits and Procedures for Using Tutorials in Life Sciences Arbitrations
There are several options for educating arbitrators on complex scientific or technical topics. Relatively cost-efficient methods include providing the arbitrator with excerpts from treatises or the Reference Manual on Scientific Evidence (a guide for judges developed by the Federal Judicial Center and the National Academy of Sciences) and/or a glossary of key terms jointly prepared by the parties.
But we further recommend the use of tutorials. In appropriate cases, the use of tutorials should be addressed at the initial scheduling conference. Using tutorials early in the case will help arbitrators to make key preliminary rulings. In a trade secret case, for example, one issue likely to arise is whether the alleged trade secrets have been identified with sufficient particularity. In arbitration, this dispute is likely to occur prior to discovery. (By contrast, in court the dispute may occur earlier if identification is challenged under the Twombly/Iqbal pleading standard.) If experts can be identified, as they were in the arbitration mentioned above, the tutorial will have utility even at this early stage.
A tutorial may consist of a presentation by a single expert, multiple party-selected experts or counsel, or, alternatively, it may be a prerecorded presentation from an agreed-upon source, such as the Federal Judicial Center. We believe it best for each party to designate an expert to make a presentation on core background topics. The information should be presented in a non-adversarial, neutral fashion. The arbitrator and counsel will, if necessary, ask clarifying questions. To the extent the experts disagree on an issue, they should be permitted to address each other’s position in a back-and-forth exchange. This procedure may sound like so-called “hot-tubbing”—a process that typically includes concurrent or successive expert testimony, and may include questioning of one expert by the other—but the comparison is not particularly apt, as points of contention are likely to be limited in tutorials focused only on core background concepts. That said, the procedure provides an opportunity to assess how the experts, their counsel and the arbitrator interact, and hence whether hot-tubbing during the merits hearing might be appropriate.
We recommend recording tutorials so that they can be referred to as needed and/or replayed just prior to opening arguments. Although consideration should be given to whether the tutorials constitute evidence or bind the parties, we think this practice should be avoided because parties are far less likely to adhere to expectations of neutrality and candor under those circumstances.
In sum, parties should consider the early use of tutorials in life sciences cases. Depending on the case, parties can schedule tutorials on different topics up to the date of the hearing so that the arbitrator’s “course of study” can proceed in a gradual, cumulative manner. Whether limited to a single tutorial or a series of them, this process allows the parties to introduce their experts to the arbitrator at an early stage in the case, both to build rapport and to streamline their introduction at the merits hearing. Moreover, the effective use of tutorials enables the arbitrator to decide preliminary matters with greater efficiency and to better receive evidence at the hearing.